David H. Souter

The first returns seemed to vindicate the scouting report. A contemporaneous study of his first term found that 'the new justice generally voted with the conservatives as expected, but he was more often in a moderate conservative position in our tables than at the extreme.' Then came the third term and Planned Parenthood v. Casey (1992), in which Souter, Sandra Day O'Connor (§102) and Anthony Kennedy (§104) jointly reaffirmed what they called the essential holding of Roe, opening with a sentence that has outlived the doctrine it saved: 'Liberty finds no refuge in a jurisprudence of doubt.' The opinion's meditation on precedent and legitimacy, which Souter is reported to have presented when the three announced the decision from the bench, is the fullest statement of his creed in the United States Reports: 'The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands.' To abandon a watershed under political fire, the opinion warned, 'would subvert the Court's legitimacy beyond any serious question.' Thirty years later a different majority did exactly that, as the Alito chapter (§110) recounts. For the movement that had confirmed him, Casey was the betrayal that named an era. Sununu felt it personally: 'To this day, any time I go to a conservative meeting 15 people come up and hit me with a Souter two by four across the forehead.' The lesson hardened into the selection system itself, a demand for long records and proven commitments that produced the far more legible nominees of every Republican administration since.

What looked like apostasy from Washington looked, from inside his opinions, like consistency. Souter was the Court's thoroughgoing common-law judge, an heir to the second Justice Harlan's (§89) method: in Washington v. Glucksberg (1997) he concurred separately to defend the old case-by-case approach to substantive due process rather than any grand test. His majorities fit no scorecard. He wrote Board of Education of Kiryas Joel v. Grumet (1994), striking a school district drawn for a single religious village; Old Chief v. United States (1997), a small masterpiece of evidence law; McCreary County v. ACLU (2005), reaffirming, on the same June day the Texas monument survived next door, that the First Amendment demands 'governmental neutrality between religion and religion, and between religion and nonreligion'; and Exxon Shipping Co. v. Baker (2008), which capped punitive damages in maritime law at 'a 1:1 ratio' to compensatory awards. His great dissents came in the federalism wars. When the Court held that Congress could not subject states to private suit, he answered in Seminole Tribe v. Florida (1996) that the majority 'holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right,' and in Alden v. Maine (1999) that 'the resemblance of today's state sovereign immunity to the Lochner era's industrial due process is striking.' He was not given to theater; when he read a dissent from the bench, in the campaign-finance case FEC v. Wisconsin Right to Life (2007), it drew notice.

Bush v. Gore was the wound. His dissent would have returned the case 'to the courts of Florida with instructions to establish uniform standards' and let the count finish. What it cost him is contested, and this chapter records the contest rather than settling it: Jeffrey Toobin's The Nine reported that 'David Souter alone was shattered,' that he 'seriously considered resigning,' and that 'there were times when David Souter thought of Bush v. Gore and wept'; Rudman, the man who knew him best, called the account 'absolutely false' and the book 'one of the great works of fiction,' noting that Toobin had never spoken to him. Five years later the country got a stranger measure of his detachment. After he joined the majority in Kelo v. New London (2005), an activist proposed that Weare seize the Souter farmhouse for a 'Lost Liberty Hotel'; the town's voters, offered even a softened version of the idea, rejected it by roughly three to one. He ate the apple, core and all, wrote with the fountain pen, told a House subcommittee in 1996 that 'the day you see a camera come into our courtroom, it's going to roll over my dead body,' was mugged while jogging near Fort McNair in 2004, and drove himself home to New Hampshire, disliking the flight. Harry Blackmun (§98) once suggested he might be 'the only one of us who is normal.' Souter's own summary of his situation became the most quoted job review in the building: the world's best job in the world's worst city.

By the Supreme Court Database's coding, as computed for this site, he cast a liberal vote in 57.2 percent of nearly 1,700 coded cases against a 45.8 percent average for the colleagues who sat on the same cases, the eleventh most liberal record of the thirty-three justices the site's panel ranks, with a dissent rate of 16.7 percent that actually sits below his colleagues' 17.6: a member of the left flank who lived in the majority more than most. On the question of who moved, the data declines to flatter either story. In his first third on the Court he stood 3.7 points to the left of his bench; in his final third, 16.7 points; and the site's decomposition attributes most of that widening, 10.9 of the 13 points, to the justice's own voting rather than to the bench changing around him. The bench's own slight rightward shift in those years does not clear the data's statistical bar; his movement does. However the era is told, the method never moved. It had been the same since Concord.

On May 1, 2009, in the first spring of the Obama administration and at sixty-nine, he wrote the president that he would retire when the Court rose for the summer, the youngest justice to leave since Potter Stewart in 1981; the president praised a judge who 'never sought to promote a political agenda' and 'consistently defied labels and rejected absolutes.' His seat went to Sonia Sotomayor (§111), and his retirement promise, 'to continue to render substantial judicial service,' proved literal: he sat on First Circuit panels for more than a decade. He left the Weare farmhouse for a single-story house in Hopkinton because, a Weare neighbor recalled him explaining, 'there was just so much weight from the books, it would be too much for the house to support.' At Harvard's 2010 commencement he finally answered his critics' theory of judging, arguing that the 'fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do,' because 'the Constitution is a pantheon of values' whose hardest cases set those values against each other; the judges of 1954, he said, 'found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.' In 2012, at a Concord forum, he warned that civic ignorance is how republics die: one day, after some crisis, 'some one person will come forward and say, "Give me total power, and I will solve this problem."' And then: 'That is how the Roman republic fell.' His papers went to the New Hampshire Historical Society under a seal reported to run fifty years, so the inside history of his Court will belong to another generation.

He died at his home in New Hampshire on May 8, 2025, at eighty-five; the Court's announcement said he died peacefully. The Chief Justice (§109) said he 'brought uncommon wisdom and kindness to a lifetime of public service,' and Sotomayor, his successor in the seat, said 'no one was more welcoming to me than David.' At his request there was no public memorial. It was in character. The slogan his name became was always about the movement's disappointment, never about the man's inconstancy, and the judge nobody could read in 1990 turns out to have been legible all along, in the oldest legal language the country has: decide the case, respect the cases, and go home when the work is done. He did all three.